B-183038, MAY 9, 1975

B-183038, MAY 9, 1975

1. CSC DIRECTED FORMER EMPLOYEE OF CANAL ZONE GOVERNMENT TO BE RESTORED TO HER POSITION RETROACTIVE TO AUGUST 19, 1967. SHE WAS PAID BACK PAY ONLY FROM AUGUST 19 TO DECEMBER 25, 1967, ON GROUND THAT IN 1968 SHE HAD EXPRESSED DESIRE NOT TO RETURN TO POSITION. SHE IS ENTITLED TO BACK PAY FROM DECEMBER 26, 1967, THROUGH JUNE 30, 1969, MANDATORY RETIREMENT DATE, SINCE THERE WAS NO OPPORTUNITY TO TEST HER WILLINGNESS TO RETURN TO THE CANAL ZONE WHEN CSC ORDERED HER RETROACTIVE RESTORATION IN APRIL 1973. 2. CSC DIRECTED EMPLOYEE'S RESTORATION RETROACTIVELY ON GROUND THAT SHE HAD BEEN REMOVED IMPROPERLY. SHE IS ENTITLED TO BACK PAY UNDER 5 U.S.C. 5596 BUT HER CLAIM FOR ATTORNEY'S FEES, INTEREST, AND DAMAGES IS DENIED SINCE THERE IS NO STATUTORY AUTHORITY FOR SUCH PAYMENT.

EVELYN S. SLOWICK - MODIFICATION OF BACK PAY PAYMENT:

THIS MATTER CONCERNS A REQUEST FOR MODIFICATION OF THE AMOUNT ALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION'S SETTLEMENT OF THE BACK PAY CLAIM OF MRS. EVELYN S. SLOWICK, A FORMER EMPLOYEE OF THE CANAL ZONE GOVERNMENT, BALBOA HEIGHTS, CANAL ZONE.

IN SUMMARY, THE RECORD SHOWS THAT EFFECTIVE AUGUST 19, 1967, MRS. EVELYN S. SLOWICK WAS INVOLUNTARILY REMOVED FOR DISCIPLINARY REASONS FROM HER POSITION AS A PUBLIC HEALTH NURSE WITH THE CANAL ZONE GOVERNMENT. SHE CHALLENGED THIS REMOVAL ACTION AT SEVERAL LEVELS WITHIN THE UNITED STATES CIVIL SERVICE COMMISSION (CSC). A CIVIL SUIT FILED ON HER BEHALF IN JUNE 1969, IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, WAS DISMISSED. HOWEVER, AFTER A SUCCESSFUL APPEAL FROM THAT DISMISSAL - SLOWICK V. HAMPTON, 470 F.2D 467 (D.C. CIR. 1972) - SHE WAS RETROACTIVELY RESTORED TO HER POSITION IN THE CANAL ZONE BY DIRECTION OF THE BOARD OF APPEALS AND REVIEW, CSC, IN A LETTER DATED APRIL 17, 1973.

THE RESTORATION WAS MADE RETROACTIVELY EFFECTIVE AS OF AUGUST 19, 1967, AND THE REMOVAL ACTION WAS CANCELED.

SUBSEQUENT TO THE CSC DECISION OF APRIL 17, 1973, THE ISSUE OF MRS. SLOWICK'S BACK PAY WAS CONSIDERED, AND THE CANAL ZONE GOVERNMENT DETERMINED THAT BACK PAY WAS PAYABLE ONLY FOR THE PERIOD FROM AUGUST 19, 1967, THROUGH DECEMBER 25, 1967, THE DAY PRIOR TO HER FULL TIME EMPLOYMENT WITH THE DISTRICT OF COLUMBIA, DEPARTMENT OF PUBLIC HEALTH. BACK PAY FOR SUCH PERIOD HAS ALREADY BEEN PAID TO MRS. SLOWICK.

THE ADMINISTRATIVE DETERMINATION OF THE CANAL ZONE GOVERNMENT TO TERMINATE BACK PAY AS OF DECEMBER 25, 1967, WAS BASED UPON MRS. SLOWICK'S ALLEGED REPRESENTATIONS OVER SEVERAL INTERVENING YEARS THAT SHE NEITHER WISHED TO RETURN TO THE CANAL ZONE NOR DESIRED REINSTATEMENT TO HER POSITION THERE. THE AGENCY REASONED THAT AFTER DECEMBER 25, 1967, SHE WAS NOT READY AND WILLING TO RESUME HER FORMER EMPLOYMENT AND, THEREFORE, DID NOT SATISFY ONE OF THE PREREQUISITES FOR BACK PAY. IN ADDITION REFERENCE WAS MADE TO THE APPELLATE OPINION CITED, SUPRA, AT PAGE 468, FOOTNOTE 1 WHICH STATES:

"1. WHILE THE CLAIM WAS PENDING BEFORE THE CIVIL SERVICE COMMISSION, APPELLANT, WHO HAD OBTAINED EMPLOYMENT AS A PUBLIC HEALTH NURSE WITH THE DISTRICT OF COLUMBIA GOVERNMENT, ABANDONED HER CLAIM FOR PHYSICAL REINSTATEMENT, AND LIMITED HER CLAIM SO AS TO SEEK RECORD RESTORATION FOR THE FOUR MONTHS SHE WAS OFF THE ROLLS AND COMPENSATION FOR THAT PERIOD."

HOWEVER, AN EXAMINATION OF THE OPINION INDICATES THAT THE PERIOD FOR WHICH BACK PAY COULD BE PAID WAS NOT AN ISSUE BEFORE THE UNITED STATES COURT OF APPEALS, AND THEREFORE WAS NOT DECIDED BY THAT COURT. FURTHERMORE, AS POINTED OUT BY THE OFFICE OF THE UNITED STATES ATTORNEY WHO LITIGATED THE CASE, THE DISTRICT COURT IN GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT NEVER REACHED THE ISSUE OF BACK PAY. ADDITION, AFTER THE SUBSEQUENT REMAND FROM THE COURT OF APPEALS AND THE CSC DECISION RETROACTIVELY RESTORING MRS. SLOWICK TO HER POSITION, THE DISTRICT COURT FINALLY DISMISSED HER CIVIL COMPLAINT ON OR ABOUT JUNE 20, 1973. THE FORMAL ORDER OF DISMISSAL WAS APPARENTLY SILENT WITH RESPECT TO BACK PAY ENTITLEMENT.

THE DECISION BY THE BOARD OF APPEALS AND REVIEW, DATED APRIL 17, 1973, DIRECTED THE CANAL ZONE "TO CANCEL THE REMOVAL ACTION, AND RESTORE THE APPELLANT TO HER POSITION RETROACTIVELY EFFECTIVE TO THE DAY FOLLOWING THE EFFECTIVE DATE OF REMOVAL." THE CSC DECISION LETTER MAKES NO REFERENCE LIMITING OR QUALIFYING THE PERIOD FOR WHICH RESTORATION WAS SOUGHT; NOR DOES IT INDICATE THAT MRS. SLOWICK HAD ABANDONED HER CLAIM FOR FULL RESTORATION OR OTHERWISE LIMITED IT TO A MERE "RECORD RESTORATION FOR THE FOUR MONTHS" BETWEEN AUGUST 19 AND DECEMBER 26, 1967, THE DATE WHEN SHE WAS EMPLOYED BY THE DISTRICT OF COLUMBIA.

THE RECORD INCLUDES A LETTER DATED APRIL 24, 1968, FROM MRS. SLOWICK'S UNION REPRESENTATIVE TO THE CSC, WHICH READS IN PART:

"MRS. SLOWICK INFORMED ME TODAY BY TELEPHONE THAT SHE DOES NOT DESIRE TO RETURN TO THE CANAL ZONE. SHE IS SEEKING RESTORATION FOR THAT PERIOD OF TIME THAT SHE WAS OFF THE ROLLS FROM AUGUST 19, 1967 TO DECEMBER 26, 1967. SHE STATES THAT SHE WAS NOT EMPLOYED IN ANY CAPACITY DURING THIS PERIOD. ACCORDINGLY, SHE REQUESTS THAT SHE BE GIVEN FULL COMPENSATION FOR SUCH PERIOD."

THE CANAL ZONE GOVERNMENT RELIES ON THIS LETTER, AND THE QUOTED FOOTNOTE IN THE CITED APPELLATE OPINION, TO SUPPORT ITS POSITION THAT AS OF DECEMBER 26, 1967, MRS. SLOWICK WAS UNWILLING TO BE RESTORED TO THE POSITION FROM WHICH SHE HAD BEEN IMPROPERLY REMOVED ON AUGUST 19, 1967. MRS. SLOWICK, HOWEVER, DENIES THAT THE APRIL 24, 1968 LETTER ACCURATELY STATED HER INTENT AND AVERS THAT AT ALL TIMES SHE WAS READY, WILLING, AND ABLE TO RETURN TO THE CANAL ZONE HAD HER RESTORATION BEEN ORDERED PRIOR TO JUNE 30, 1969, WHEN SHE REACHED MANDATORY RETIREMENT AGE UNDER THE PROVISIONS OF 5 U.S.C. 8335(E) (1970). IN OUR OPINION, THE 1968 LETTER AND FOOTNOTE, AS WELL AS MRS. SLOWICK'S STATEMENTS TO THE CONTRARY, ARE ONLY PROBATIVE EVIDENCE BEARING ON THE ISSUE OF WILLINGNESS THAT WOULD ULTIMATELY HAVE HAD TO BE DETERMINED AFTER THE BOARD OF APPEALS AND REVIEW HELD FOR MRS. SLOWICK AND ORDERED HER RETROACTIVE RESTORATION BY ITS DECISION DATED APRIL 17, 1973. BECAUSE SHE HAD ALREADY REACHED MANDATORY RETIREMENT AGE BY THE TIME THE RESTORATION DECISION WAS MADE, SHE WAS BARRED FROM RESTORATION TO THE ROLLS OF THE CANAL ZONE GOVERNMENT AND HER WILLINGNESS TO ACCEPT SUCH RESTORATION CANNOT BE TESTED.

SUBSECTIONS (A) AND (C) OF 5 C.F.R. 550.804 (1974), AFFIRMATIVELY REQUIRE THAT COMPUTATIONS OF BACK PAY COMPLETELY RESTORE THE EMPLOYEE TO THE SAME POSITION (FROM THE STANDPOINT OF PAY, ALLOWANCES, DIFFERENTIALS, AND EMPLOYEE BENEFITS, SUBJECT TO LEAVE ACCUMULATION CEILING) HE OR SHE WOULD HAVE BEEN IN BUT FOR THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION - IN THIS CASE THE IMPROPER REMOVAL. FURTHERMORE, THE TIME PERIOD FOR THE REQUIRED BACK PAY COMPUTATION MUST BE COEXTENSIVE WITH THE TIME PERIOD COVERED BY THE UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH HAS BEEN CORRECTED - IN THIS CASE BY THE CSC DIRECTIVE OF APRIL 17, 1973, HOLDING FOR MRS. SLOWICK ON HER APPEAL FROM THE IMPROPER REMOVAL ACTION IN 1967.

IN VIEW OF THE FOREGOING, AND SINCE THE MANDATORY RETIREMENT PROVISIONS DENIED THE AGENCY AN OPPORTUNITY TO TEST HER WILLINGNESS TO ACTUALLY RESUME THE CANAL ZONE POSITION ON OR ABOUT APRIL 17, 1973, WE CONCLUDE THAT SHE SHOULD HAVE THE BENEFIT OF THE DOUBT ON THAT ISSUE WITH THE RESULT THAT BACK PAY IS PAYABLE FOR THE ENTIRE PERIOD OF HER WRONGFUL SEPARATION, FROM AUGUST 19, 1967, THROUGH JUNE 30, 1969, THE PRESCRIBED DATE FOR HER MANDATORY SEPARATION BY RETIREMENT. THE PROPER AMOUNT SHOULD BE DETERMINED IN ACCORDANCE WITH APPLICABLE REGULATIONS AND IS SUBJECT TO DEDUCTIONS FOR MRS. SLOWICK'S EARNINGS WHILE EMPLOYED IN THE DISTRICT OF COLUMBIA DURING THE PERIOD COVERED BY THE CORRECTED PERSONNEL ACTION. NOTED PREVIOUSLY, BACK PAY FOR THE PERIOD ENDING DECEMBER 25, 1967, HAS ALREADY BEEN PAID.

MRS. SLOWICK ALSO SEEKS PAYMENT FOR LEGAL EXPENSES INCURRED IN PROSECUTING THE SUBJECT BACK PAY CLAIM, INTEREST ON THE AMOUNT TO BE AWARDED, AND DAMAGES. IT IS WELL ESTABLISHED THAT THE EMPLOYMENT AND PAYMENT OF AN ATTORNEY IS A MATTER BETWEEN THE CLAIMANT AND THE ATTORNEY. IN THE ABSENCE OF A STATUTORY PROVISION, OR A VALID AGREEMENT BASED ON SUCH A PROVISION, THERE IS NO AUTHORITY FOR THE PAYMENT OF AN ATTORNEY'S FEE BY THE GOVERNMENT, 49 COMP. GEN. 44, 47 (1969). WE ARE NOT AWARE OF ANY AUTHORITY FOR PAYING LEGAL EXPENSES IN CONNECTION WITH CLAIMS UNDER 5 U.S.C. 5596 (1970). SIMILARLY THE GOVERNMENT MAY NOT BE REQUIRED TO PAY INTEREST ON UNPAID CLAIMS AGAINST IT, UNLESS PROVIDED FOR IN A LAWFUL CONTRACT OR SPECIFICALLY ALLOWABLE AND DIRECTED BY STATUTE. B-179786, OCTOBER 18, 1973, AND COURT CASES CITED THEREIN. WE ARE UNAWARE OF ANY STATUTORY BASIS FOR THE PAYMENT OF INTEREST IN THIS CASE. FINALLY, THERE IS NO STATUTORY AUTHORITY FOR AWARDING MRS. SLOWICK MONETARY DAMAGES AS A RESULT OF CHARACTER DEFAMATION, HUMILIATION, AND MENTAL ANGUISH SHE ALLEGEDLY SUFFERED AT THE HANDS OF CANAL ZONE OFFICIALS.

MRS. SLOWICK HAS DIRECTED OUR ATTENTION TO A RECENT SEX DISCRIMINATION CASE IN THE DISTRICT OF COLUMBIA. WE ARE NOT FAMILIAR WITH ALL THE CIRCUMSTANCES INVOLVED IN THE CASE. HOWEVER, IT IS CLEAR FROM THE NEWSPAPER CLIPPING SUBMITTED TO US BY THE CLAIMANT THAT THE DISTRICT OF COLUMBIA COMMISSION ON HUMAN RIGHTS ISSUED THE AWARD AGAINST A LABOR UNION AND NOT AN AGENCY OF THE UNITED STATES. THERE ARE OTHER CRUCIAL LEGAL DIFFERENCES BETWEEN THE D.C. CASE AND THIS CASE, WITH THE RESULT THAT IT CANNOT BE CONSIDERED IN ANY RESPECT AS PRECEDENT FOR AWARDING MRS. SLOWICK ANY AMOUNTS OTHER THAN BACK PAY AND RELATED ALLOWANCES FOR LEAVE, ETC.

THE CASE IS REFERRED TO OUR TRANSPORTATION AND CLAIMS DIVISION FOR PROCESSING IN ACCORDANCE WITH THIS DECISION AND, AFTER THE NECESSARY COMPUTATIONS ARE COMPLETED, PAYMENT WILL BE MADE TO MRS. SLOWICK.